Disability Discrimination

California Disability Discrimination Law

The governing body of Federal law regarding California disability discrimination is the Americans with Disabilities Act (ADA). The ADA is a minimum standard, which means that individual states are able to further adjust or change their individual laws regarding disability. California disability discrimination law is unique because it takes a much broader approach to the word “disability.” This means that California recognizes a lot more illnesses, injuries, conditions, and diseases as qualifying for disability status than Federal law.

California law states describes a disability as a condition that limits one or more major life activities. Because working is considered a major life activity, any condition that affects an individual’s ability to work may be considered a disability under California law. The California Fair Employment and Housing Act (FEHA) recognizes individuals as “disabled” if they have a physical or mental condition that limits one or more major life activities, or they are incorrectly treated as having a disability, regardless of whether or not they actually have an impairment. There are three categories of disabilities: physical disabilities, mental disabilities, and medical conditions. Physical disabilities include physiological disease, disorders, conditions, and cosmetic disfigurement or anatomical loss that affects one or more of the following body systems: neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin and endocrine systems. Mental disabilities may include conditions such as mental retardation, organic brain syndrome, emotional or mental illness, certain learning disabilities, or other mental or psychological disorder or conditions that require special education or related services.
California disability law is not concerned with an individual’s ability to perform alternate jobs; they only need to be unable to perform the regular duties of the particular job they are pursuing. Furthermore, California law makes this determination without looking at mitigating factors like medication, assistive devices, reasonable accommodation, etc. An example of a mitigating factor would be the use of glasses to correct one’s vision. Even though an individual can correct their vision to near perfect with glasses, the law would still consider the bad vision a disability, as they would not be able to see properly without glasses as the mitigating factor. FEHA also ignores mitigating factors when determining whether a condition is a disability. This creates a system that works in favor of employees.

There are some conditions, however, that do not count as disabilities. These are sexual behavior disorders including but not limited to pedophilia, exhibitionism, or voyeurism. Also not covered are compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from illegal drugs.

Another key aspect of California disability discrimination law is the interactive process between employers and employees. The Fair Employment and Housing Commission focuses their evaluation of disability cases on whether the employer provided or attempted to provide the disabled employee with a reasonable accommodation. The interactive process is an open line of communication between employer and employee, where the parties work together to develop assistive measures for best accommodating an employee’s disability. The result is called a reasonable accommodation, which enables a disabled employee to perform the essential functions of the job. In order to qualify as a proper accommodation, the FEHA mentions that any adjustment made must be effective in overcoming the limitation. This accommodation could come in the form of time taken off to see a doctor, more frequent breaks, extra time to complete tasks, etc. It is important to keep in mind that the FEHA does not expect disabled employees to be accommodated without regard for the burden placed on an employer. Instead, the FEHA uses an undue hardship standard, which is considered whenever there is a mention of a reasonable accommodation.

View more information about disability discrimination and how our lawyers can help – http://www.aegislawfirm.com/ca-employment-law-practice-areas/disability-discrimination/

Discrimination

Ways To Uncover And Prove Wrongful Termination

Being terminated from a job has to be one of the hardest things that can happen in a person’s career. It’s hard under any circumstances, but when an employee feels that they have been wrongfully terminated, it’s even worse. Unless blatant, wrongful termination is difficult to prove and requires the employee to document as much as possible and seek effective legal representation from experienced attorneys.

After termination, the first thing that should happen is a full and honest evaluation with the attorneys at Aegis Law Firm. A terminated employee will feel hurt, shocked, scared, and perhaps worst of all, inadequate. Let’s be honest. No one thinks they have been terminated for cause, even if they know they have. An employee’s first reaction is usually to get angry at the firm or boss who terminated them and look for blame. It is from this mindset that an employee may rush to a determination that it was a case of wrongful termination. This is why a thoughtful and thorough evaluation is important.

For the employee who feels strongly that they have been wrongfully terminated, the post job evaluation will involve a review of the issues faced during employment, and that employee will most likely have already started building a case through documentation. In many cases, wrongful termination begins long before the employee is let go. Employee may notice a change in attitude from a boss after making a complaint about an actual or perceived illegal activity. This type of wrongful termination is called retaliation and can be a case. Another type of wrongful termination is due to discrimination. One example of discrimination is if an employee is being pushed out due to their sex, race or sexual orientation. A strong signal of wrongful termination may be positive reviews up to the termination. For this reason keeping any performance reviews, emails, or other correspondence is valuable.

Something employees often overlook is understanding the legal and regulatory structure of the cities and states they live in. Most states are “at will”, which allows an employer to terminate workers without giving them a reason why. Understanding the laws and regulations that are in place in the jurisdiction you live in will provide you with valuable knowledge from which to make a good decision.

During the termination an employee may want to ask for the reason why they are being let go. They should take physical or at the very least mental notes, and write down their memories as soon as they can after the meeting. Many employers will not give a specific reason in these termination meetings. Still, sometimes, an employer may discuss the issues that led to termination. In these cases, an employee should listen carefully and see if things make sense. For example, the employer may say that economic conditions led to job cuts. In that case, it should be fairly easy for the employee to determine whether or not that is the truth. How many other employees were let go? Is the national or local economy in a slow down or recession? Has the work at this particular company slowed down? Has there been internal talk of a drop off in revenue or a loss? If it’s a public company that information is readily available.

Finally, use notes and documentation to determine if there was any hint of discriminatory or retaliation behavior prior to termination. If a terminated employee can make the case for discrimination or retaliation, the termination may have been a wrongful one.

In all cases of wrongful termination, victims need to seek professional legal advice and if it is determined that they have a case, move forward to get redress. If you would like a free consultation with a wrongful termination attorney visit our free case evaluation page – http://www.aegislawfirm.com/free-case-evaluation/.

Japanese Employee Dies from Exhaustion – How ‘Salaryman’ Culture Affects the Workforce

Japanese Employee Dies from Exhaustion – How ‘Salaryman’ Culture Affects the Workforce

The circumstances surrounding the death of 31 year old Miwa Sado have just been made public, though she passed away in 2013. Sado was a political reporter, and an overworked one at that – which it has now been revealed was the cause of her death by heart failure. NHK (Sado’s former employer) reported that she had worked about 159 hours of overtime in the month before her death. This means that she was working in just one week what most full time employees clock in a full (two week) pay period.

Stories such as Sado’s are not unfamiliar to Japanese culture – they even have a special term for it, “karoshi” which translates to “death by overwork”. The term was originally coined in the 1970s as Japan’s economy boomed. Labor lawyers and civil rights groups have been pressing for legislative change since the 1980s, but the trend has continued in spite of this.

In December 2015, a similar tragedy took place. Matsuri Takashi, a 24 year old employee of Dentsu, an advertising agency, jumped to her death from the company dormitory. “Ms. Takashi’s death was caused by serious depression triggered by overwork and harassment,” Hiroshi Kawahito, a lawyer representing her case, told CNN Money. In the month leading to her death, Takashi clocked about 105 hours of overtime, according to investigators. After concluding its investigation, Dentsu announced that they would be capping overtime hours to a maximum of 65 per month.

But how do work hours measure up across different countries? According to the International Labour Organization, Americans work an average of 137 hours more per year than Japanese workers. The United States is arguably the most overworked developed nation in the world – and it comes down to more than just hours worked per week.

  • The United States is the only industrialized country which has no legally required annual leave program – even Japanese workers are required to receive 10 days off per year
  • The United States is not one of the 134 countries which sets a limit on maximum hours worked per week
  • There is no federal law requiring paid sick days in the United States
  • The U.S. is the only country in the Americas without paid parental leave (maternal or paternal) to care for/bond with new children – the average in most other countries is 12 weeks of paid leave and 20 weeks of paid leave throughout Europe.

 

Sources:

https://20somethingfinance.com/american-hours-worked-productivity-vacation/

https://www.usatoday.com/story/news/world/2017/10/06/japan-struggles-karoshi-death-overwork-after-deaths-2-young-women/738915001/

http://money.cnn.com/2017/10/05/news/japan-work-overwork-woman-dies-karoshi/index.html

Sexual Harassment Lawyer

Seeking Legal Help for Sexual Harassment

You’ve done your research, you’ve become familiar with your company sexual harassment policy, and you’ve come to the conclusion that you are being sexually harassed. Now what? What steps can you take to make sure the sexual harassment stops, and what are your options if it doesn’t stop? These are very important questions and how one finds the answers determines whether there will be a positive outcome.

Taking the steps to stop sexual harassment begins in the workplace, and may or may not end with legal action. The steps taken and decisions made at every point in the process can make seeking help easier if those steps and decisions are the right ones. If legal help is eventually needed and sought, there are some things that need to be done early. Once sexual harassment is suspected or identified, the victim needs to immediately report the activity to Human Resources. It is also important to speak with a trusted friend or advisor and detail the activity. One important action that can be taken is to keep any and all emails and or recorded messages which will be of great help during a future case. Experts continually stress that there is nothing more important in a sexual harassment action than thorough documentation of the activity and actions taken to counter it.

Seeking legal help for sexual harassment can be an intimidating process. The first step is to investigate the many law firms that practice employment law. Luckily in our modern world, this research can begin online, where information is readily available about potential representation. You should look into reviews from clients, the type of law the firm practices, the number of attorneys who practice employment law in the firm, and how many years of experience they have in employment law. During this consultation, it will be important to have an open and honest conversation with the attorney about the sexual harassment claims and actions taken. It will also be important to present the evidence gathered over time in order to make the best possible case and lead to the best possible outcome.

Contact Aegis Law firm directly at (949) 379-6250 or learn more about our sexual harassment services https://www.aegislawfirm.com/ca-employment-law-practice-areas/orange-county-los-angeles-sexual-harassment-attorney/

DFEH Approves New Transgender Protections and Guidelines

The California Department of Fair Employment and Housing has approved new guidelines and protections for transgender people in the workplace to be effective July 1, 2017. The new amendments aim to clarify existing law and further the protection of transgender people from discrimination at work. The new legislature provides transgender rights including equal access to bathrooms and other facilities, freedom to dress differently than what is typically associated with one’s gender, and the ability to withhold information regarding one’s name and gender to the employer. Below is a detailed list of the expanded areas.

  • Definitions:
    • The new amendments elaborate on the definition of key words including gender expression, gender identity, sex, sex stereotype, and transgender.
    • The document also adds onto the list of terms with the word “transitioning”, which it defines as “a process some transgender people go through to begin living as the gender with which they identify, rather than the sex assigned to them at birth. This process may include, but is not limited to, changes in name and pronoun usage, facility usage, participation in employer-sponsored activities (e.g. sports teams, team-building projects, or volunteering), or undergoing hormone therapy, surgeries, or other medical procedures.”
  • Restrooms:
    • The regulations state that employers must provide “comparable, safe, and adequate” access to facilities, and the employees shall be permitted to use the facilities that correspond to the employee’s gender identity or expression.
    • Single-occupancy facilities must use gender neutral signs.
  • Employees will not need to provide proof of medical treatments to use a facility of a gender different than their assigned sex.
  • Employers cannot condition “fringe benefits” upon an employee’s sex or gender identity.
  • Employers may not force employees to dress according to their gender identity, unless the employer can prove that it is a necessity to the business.
  • Recording of Gender and Name: Inquiries that directly or indirectly identify an individual on the basis of sex, including gender, gender identity, or gender expression, are unlawful unless the employer establishes a permissible defense. For recordkeeping purposes, an employer may request an applicant to provide this information solely on a voluntary basis.
  • An employer is allowed to use an employee’s gender or legal name as indicated in a “government-issued identification document” if and only if it is necessary to meet a “legally mandated obligation”. Otherwise, the employer must use the employee’s gender identity and preferred name.
  • Additional Rights:
    • It is unlawful to deny employment to an individual based wholly or in part on the individual’s sex, gender, gender identity, or gender expression.
    • It is unlawful to discriminate against an individual who is transitioning, has transitioned, or is perceived to be transitioning.
    • It is unlawful for employers and other covered entities to inquire about or require documentation or proof of an individual’s sex, gender, gender identity, or gender expression as a condition of employment”
      • However, an employer may assert a Bona Fide Occupation Qualification defense, which is the defense that the employer only considered qualities that he or she is legally allowed to consider when deciding to not hire or fire someone.
      • In addition, an employer may discuss with an employee their sex, gender, gender identity, or gender expression if the employee initiates communication.

Background

The Department of Fair Employment and Housing (DFEH) protects California citizens from discrimination and enforces laws regarding unfair treatment in employment, housing, and public accommodations. Regarding employment, the Fair Employment and Housing Act (FEHA) protects employees from discrimination because of race, color, ancestry, national origin, religion, creed, age (over 40), disability (mental and physical), sex, gender (including pregnancy, childbirth, breastfeeding or related medical conditions), sexual orientation, gender identity, gender expression, medical condition, genetic information, marital status, and military or veteran status.

If you have been subject to discrimination at work, please call 949-379-6250 for a free consultation. For more information on how to obtain a sex discrimination attorney, see our page on the topic.

Full Fair Employment & Housing Council Regulations Regarding Transgender Identity and Expression

California Department of Fair Employment and Housing